Jharkhand High Court
Tijna Kharia vs The State Of Jharkhand on 20 January, 2016
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Cr. Appeal (DB) No.704 of 2013
(Against the judgment of conviction and order of sentence dated
18.09.2006 and 19.09.2006 respectively, passed by Sri Om Prakash
Pandey, No.1, 1st Addl. Sessions Judge, Gumla in connection with
Sessions Trial No.119 of 2004, corresponding to Sisai (Bharno) P.S.
Case No.09 of 2004, G.R. Case No.45 of 2004)
Tijna Kharia ............... Appellant
Versus
The State of Jharkhand ...... Respondent
PRESENT: HON'BLE MR. JUSTICE D.N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Gautam Kumar, Amicus curiae
For the Respondent : Mr. Nehru Mahto, A.P.P.
J U D G M E N T
By Court: This appeal has been directed against the judgment of
conviction and sentence dated dated 18.09.2006 and 19.09.2006 respectively, passed by learned 1st Addl. Sessions Judge, Gumla in connection with Sessions Trial No.119 of 2004, corresponding to Sisai (Bharno) P.S. Case No.09 of 2004, G.R. Case No.45 of 2004 whereby learned 1st Addl. Sessions Judge, Gumla has held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo R.I. for life and also to pay fine of Rs.1000/.
2. The case of prosecution, in brief, is that on 21.01.2004 at about 6.30 a.m. the appellant with Ratia Kharia (deceased) and Budhani Khariain (deceased) were sitting under a tamarind tree and they were warming themselves by fire. It was a winter morning. It is alleged that appellant Tijna Kharia suddenly caused injury to Ratia Kharia by means of tangi which he was having in his possession. Budhani Khariain intervened to save her son Ratia but she was also inflicted with tangi blow by the appellant. Hearing hulla when Chumai Khariain (wife of Ratia) rushed to save her husband and motherinlaw, she was also given same treatment and the appellant hurled tangi blow causing injury to Chumai Khariain too. After sustaining injury all the three; Ratia Kharia, Budhani Khariain and 2 Chumai Khariain died at the spot. The occurrence was witnessed by the informant and other villagers who assembled after hearing alarm raised by the deceased. Thereafter appellant Tijna Kharia confined himself in the house of Mangru Kharia and bolted the door from inside. The witnesses and the villagers kept the said house under vigil and informed the police. The appellant was apprehended by the police who overpowered him after breaking open the door of the house of Mangru. The appellant was having blood stained tangi with him at the time of his arrest. Fardbeyan of Birsa Kharia was recorded on 21.01.2004 at 11.30 hours and Sisai (Bharno) P.S. Case No.09 of 2004 dated 21.01.2004 under Section 302 of the Indian Penal Code against sole appellant was registered. The Investigating Officer took the charge of investigation at the spot and proceeded ahead. The statement of witnesses were recorded, seizure list of blood stained axe and blood stained earth were prepared. The I.O. also prepared inquest report and sent the dead bodies for post mortem examination. After concluding investigation, chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of sessions and registered as S.T. No.119 of 2004.
3. The charge under Section 302 of the Indian Penal Code against the apellant was framed, content of the charge was read over and explained to which appellant did not plead guilty and claimed to be tried. The prosecution, in order to substantiate the charge, has examined altogether ten witnesses and proved documents. The learned Addl. Sessions Judge, at the conclusion of trial, held the appellant guilty for the offence pupnishable under Section 302 of the Indian Penal Code and sentenced him, as indicated above.
4. The appellant has assailed the impugned judgment on the ground that Birsa Kharia PW3 (informant) is not an eye witness which is apparent from the statement of PW4. According to statement of PW4 he was the person who first reached to the place of occurrence but according to informant there was only one eye witness present at the spot and he is Mangru Kharia who had given his L.T.I. on the fardbeyan. The informant did not name PW4 that he was present at the time of occurrence. Likewise, PW4 Charkhu Sahu did 3 not say that informant was present. The prosecution has projected four eye witnesses including the informant and they are PW3, PW4, PW6 and PW7 but the statement of socalled eye witnessses is not consistent about the manner of occurrence. On close perusal of the deposition of aforesaid witnesses, it would reveal that they had not seen the ocurrence rather they reached at the place of occurrence when the assault was over and the appellant also was not present at the scene of occurrence. Unfortunately, Mangru who has been named as eye witness in the fardbeyan died and therefore he could not be examined. Had he appeared in the dock, true story would have come out. The statement of eye witnesses are also not reliable on the ground that the appellant along with deceased Ratia and Budhani were jointly warming themselves by sitting near the fire which indicates that they were sitting in a coridal atmosphere. The prosecution is completely silent on the point as to what instigated the appellant to start assaulting deceased Ratia. This goes to show that the manner of occurrence as brought on record by the prosecution is not believable and prosecution witnesses have not given the true picture. The blood stained axe or blood stained earth collected from the place of ocurrence had not been sent to Forensic Science Laboratory for its chemical examination. Only production of axe alleged to have been used for committing murder is not sufficient to prove this fact that axe was stained with human blood. In the circumstances, the appellant at least, needs benefit of doubt.
5. Learned A.P.P. has vehemently opposed the argument advanced and submitted that appearance of eye witnesses i.e. PW3, PW4, PW6 and PW7 at the scene of occurrence was quite natural and believable. The manner of occurrence, described by these witnesses is also reliable. These witnesses have given true picture of the occurrence which they had witnessed. The statement of aforesaid eye witnesses is not stereo type rather they have deposed the same what they had visioned. The description of ocular evidence given by eye witnessses find full corroboration from the post mortem reports (Exhibits2, 3 and 4). The appellant was apprehended with blood stained axe and that fact stood corroborated from the evidence of 4 witnesses in whose presence the appellant was apprehended and the axe was seized. PW10 Stiphan Ekka has stated that the door of the house of Mangru was broke open and the appellant was apprehended from that house and he was having blood stained tangi in his possession. It is submitted that it is a case of triple murder in which the accused was apprehended with blood stained axe used for commission of the murder and the occurrence is being supported by four eye witneses. There is no merit in this appeal and the same is liable to be dismissed.
6. Heard both sides, perused the impugned judgment, lower court record, deposition of witnesses and the documents marked as exhibits. We do not find force in the argument advanced on behalf of appellant that statement of eye witneses i.e. PW3, PW4, PW6 and PW7 is not consistent. We have carefully examined the statement of these four eye witnesses and we find that they have given actual account of the incident which they had witnessed and that too without exaggeration. We do not find that evidence of these witnesses was influenced from any corner. The scenario which the informant has given in the fardbeyan find support from the statement of PW4, PW6 and PW7. Charkhu Sahu PW4 has stated that he was going to answer the call of nature and he had seen appellant Tijna Kharia, deceased Ratia Kharia and Budhani Khariain along with children sitting under a tamarind tree and they were warming themselves sitting near the fire. This witness has stated that suddenly Tijna Kharia stood up and caused assault to Ratia Kharia by means of tangi. No sooner Budhani Khariain intervened, she was also inflicted tangi blow by the appellant. On hulla Chumai Khariain ran from her house and tried to save her husband and motherinlaw Budhani but she too, was not spared by the appellant. The appellant caused assault to her by means of tangi. All the three injured died at the spot. This witness also raised alarm which attracted the people but till then appellant Tijna having tangi in his hand ran to the house of Mangru and confined himself inside the house after bolting the door. Therefore, PW4 is eye witness who had seen assault caused by appellant to all the three deceased.
5Malu Oraon PW6 has deposed that at the time of occurrence i.e. about 6.006.30 a.m. he was busy in feeding his cattle. In the mean time, he heard hulla which attracted his attention towards the place of occurrence and he ran towards that direction. He says that when he reached, Ratia and Budhani were already lying on the ground after having injury. At the same time, Chumai Khariain reached to the place from her house but the appellant caused assault to her by means of tangi. The evidence of this witness appears quite natural because he did not say that he had seen the assault caused to Ratia and Budani too, rather he speaks about the assault caused to Chumai who reached later to save her husband and motherinlaw.
Birsu Kharia PW7 says that Ratia was assaulted by appellant and then Budhani tired to intervene but the appellant inflicted repeated blows by means of tangi to Budhani as a result she fell down. In the meean time, Chumai Khariain reached to the place but she was also assaulted by the appellant by means of tangi. Therefore, Birsu Kharia PW7 speaks about the assult caused to Budhani and Chumai. In view of the evidence referred to above, we find that PW4, PW6 and PW7 are reliable eye witnesses and there is nothing on the record to disbelieve their testimony.
Birsa Kharia PW3 is the informant and he has supported the prosecution case as made out by him in the fardbeyan. He has explained the entire episode which he had witnessed. According to PW3 he had seen the appellant along with deceased Budhani and Ratia warming themselves sitting near the fire. The appelant, after consuming tobacco stood up and suddenly caused assault to Ratia on his neck by means of tangi. He inflicted repeated blows by means of tangi to Ratia. Budhani intervened to save Ratia but she was also assaulted by the appellant. After having injuries, Ratia and Budhani fell down at the spot. On hulla Chumai Khariain (wife of deceased Ratia) ran to the place of occurrence but the appellant caused assault to Chumai too by means of tangi. All the three injured died at the spot. The appellant, after committing the offence, confined hmself in the house of Mangru. He was not given opportunity to flee from the village because the villagers had surrounded the house of Mangru in 6 which the appelland was hiding. The appellant was apprehended with blood stained tangi after arrival of the police. The reason behind the occurrence, as assigned by the witnesses, is that deceased Ratia had taken Rs.300/ from the appellant for sending him to Punjab for employment. When Ratia did not oblige him and also refused to return the cash of Rs.300/ which he had taken from the appellnat, this incident had taken place. The ocular evidence given by PW3, PW4, PW6 and PW7 find corroboration from the evidence of Dr. Nawal Kishore Sinha PW8 who has proved post mortem reports as Exhibit2, 3 and 4. The Investigating Officer namely Stephen Ekka PW10 has proved the fardbeyan, seizure list and other relevant documents. He has corroborated the investigation done by him and supported the prosecution case, as made out by the witnesses. We do not find any material on record to give benefit of doubt to the appellant. In the result, judgment of conviction and sentence dated dated 18.09.2006 and 19.09.2006 respectively, passed by learned 1 st Addl. Sessions Judge, Gumla in connection with Sessions Trial No.119 of 2004, corresponding to Sisai (Bharno) P.S. Case No.09 of 2004, G.R. Case No.45 of 2004 is hereby upheld.
Accordingly, this appeal stands dismissed.
Learned counsel Sri Gautam Kumar has been appointed from Jharkhand State Legal Services Authority to assist the Court on behalf of appellant Tijna Kharia. He has discharged the obligation sincerely and therefore, he is entitled to receive required fee from JHALSA. The Member Secretary, JHALSA is requested to do needful.
(D. N. Upadhyay, J.)
(Ratnakar Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 20.01.2016
NKC// N.A.F.R.